Controlling
Residential Growth
Transferrable
Development Rights
The
state legislature recently passed a bill (written by Delegates
Doyle, Tabb, and Manuel) that permits rapidly growing counties
to use a system of "transferrable development rights."
This permits land owners in an area to sell the rights to develop
their property, without selling the property itself. For example,
a landowner with the right to develop ten houses on his property
might sell that right to another landowner -- provided that the
recipient is in a zone that has been designated to permit such
construction.
The
bill will really affect only Jefferson County, at least for the
next five years, because of a provision inserted into the bill
by the Judiciary Committee of the House of Delegates. This mandates
that any county using transferrable development rights must have
had countywide zoning in place for at least five years.
Now,
I think that provision is rather silly, but those of us who support
"TDR's" had to agree to permit its insertion to save
the bill. That change was advocated by the West Virginia Home
Builders Association, on behalf of some home builders in Berkeley
County. It seems that these folks fear that TDR's might make zoning
more attractive to the citizens of that county.
The Berkeley County Commission tried to pass a zoning ordinance
several years ago. It was defeated resoundingly in a referendum.
I find it amazing that Berkeley, growing at a much faster rate
than Jefferson, doesn't have countywide zoning.
Anyway,
the bill is still workable for Jefferson County, even with that
provision.
Another provision inserted into the bill (this one on the House
floor) mandated that adoption of TDR's could only come after a
countywide referendum. Again, I think this is kind of silly, but
it doesn't render the bill unworkable. I would presume the County
Commission would simply time the adoption of TDR's (should the
commission chose to so adopt them) to enable the referendum to
take place at a regularly scheduled primary or general election.
This provision was advocated by Delegate John Overington of Berkeley
County. Delegate Overington is a supporter of TDR's, but is also
a consummate believer in referendum.
A third change was made to the original bill, this one by the
Senate Judiciary Committee. Originally, the bill called for TDR's
to be issued for a "maximum" of ten years. This is a
common provision in many state TDR statutes. It is designed to
ensure that TDR's are not used as permanent easements. The whole
idea of TDR's is that they be temporary. In this way, a system
of TDR's is a good complement to a farmland preservation program.
Under farmland preservation, development rights are sold to the
government in perpetuity. Under TDR's they are sold to private
entities, via the mechanisms of the marketplace, but do not perpetually
encumber the seller's property.
Some people who do not wish to permanently prevent their land
from being developed are happy to do so temporarily, for (presumably)
a lower price than they would get for a permanent easement. This
way, growth can be concentrated in the area zoned for it. Applications
for variances by folks holding property outside the growth zone
would be discouraged by the free market.
Anyway, the Senate Judiciary Committee removed the word "maximum."
So the bill now requires TDR's to be for "ten years"
(no more, no less). Again, this is an irritant, but I don't think
it renders the law unworkable.
Initially, Senator Herb Snyder, Vice Chair of Senate Judiciary,
wanted the TDR's to be for thirty years. We were able to compromise
on the ten year provision. This is a classic example of the legislative
process. It rarely gives us a perfect bill. But, if we are persistent,
we can get a workable one.
I encourage the Jefferson County Commission to immediately begin
work on a TDR ordinance. If it turns out that the ten year provision,
or any other provision in the bill, is a real roadblock, we'll
work to remove the roadblock in the next regular session of the
legislature.
"Growth Counties," Impact Fees, and the Local Powers
Act
Ultimately,
it's the responsibility of local government (the Jefferson County
Commission and the various municipal governments) to determine
the rules under which residential development occurs. The state
legislature sets the parameters, by passing "enabling legislation"
to permit counties and towns to impose various rules governing
development. But, once those "enabling" laws are passed,
the local governments must act.
The
legislature passed the Local Powers Act over a dozen years ago.
This law gave "growth" counties (defined as those counties
which grew by at least 1% per year for at least 5 years in a row)
the ability to pass regulatory ordinances not permitted to "non-growth"
counties. Once a county is designated a "growth" county,
it may never have that designation removed.
One
of the actions permitted "growth" counties is the permission
to levy impact fees on residential developers. Despite the fact
that Jefferson County qualified as a "growth" county
the day the Local Powers Act was enacted, our county still lacks
impact fees.
A
"growth' county must do several things before impact fees
can be levied. Among these are the adoption of countywide zoning
and the adoption of countywide building codes.
The
County Commission has twice asked the legislature to make the
imposition of impact fees easier, first by exempting historic
structures from the building code requirement, and then by asking
that existing structures be exempted from the same requirement.
Both times the legislature complied, by passing bills that Delegate
Dale Manuel and I sponsored.
Each
time we go to the well in Charleston to amend the Local Powers
Act, it gets more difficult. Legislators from "non-growth"
counties (which includes most of West Virginia's counties) balk,
saying "why should we give you more tools, when you don't
use the tools you have?" It's a legitimate question
Farmland
Preservation Act, Developer's Relief Act
In
addition to the above laws, we've passed the Farmland Preservation
Act, and, this year, a bill to fund it. For three years in a row,
we defeated the "Developers' Relief Act," a ghastly
proposal that would have given huge tax breaks to residential
developers, and devastated our county's treasury. Finally, the
other side said "uncle," and agreed to a gutted version
of the bill, which does not harm the treasury.
Future Needs
We
need more laws to permit our local governments to deal with growth,
such as the permission to use a concept called "transferable
development rights" in conjunction with local zoning. I'll
strongly support that, and the other changes we need in state
law. The road will be much easier if our County Commission adopts
impact fees. Then, we can truly say "we know we need changes,
because we've tried out the Local Powers Act as it is currently
written."
